Even without DNS provisions, SOPA and PIPA remain fatally flawed

The DNS blacklist language is being taken out of SOPA and PIPA after it became …

The special interests behind the Stop Online Piracy Act and the Protect IP Act are in full retreat, throwing the bills' most controversial provisions overboard in a desperate attempt to stop the entire bill from sinking. Realizing that proposals to create a DNS-based blacklisting scheme had become politically radioactive, the bills' sponsors—Rep. Lamar Smith (R-TX) and Sen. Patrick Leahy (D-VT), respectively—have pledged to drop these provisions. On Tuesday, even the Motion Picture Association of America declared that DNS filtering was "off the table" for this year's legislation.

So with the DNS-blocking provisions dead, are today's protests much ado about nothing? Not by a long shot. While the DNS language posed the gravest danger to free speech online, the bills are full of provisions that trample free speech, due process, and online innovation.

It's hard to know exactly what will be in the final version of these bills, since they are still due for several rounds of debate and amendment before they could reach President Obama's desk for a signature. But the latest versions of the bill we could get our hands on—the version of PIPA reported out of the Senate Judiciary in May, and Rep. Smith's "manager's amendment" to SOPA from December—show a number of remaining problems, and we've gotten no commitments from the sponsors to address these remaining issues.

Both PIPA and SOPA feature inadequate judicial oversight, allowing injunctions to be granted after a single, one-sided court hearing. Both give the power to seek injunctions not only to the attorney general but also to private copyright holders. And SOPA has a provision, not included in PIPA, that would make unauthorized streaming of copyrighted content a felony punishable by up to 10 years in prison.

Due process problems

The Supreme Court has ruled that the First Amendment prohibits prior restraint—limiting access to speech before a court has provided due process to the defendant. In particular, as a letter signed by dozens of law professors pointed out, speakers are entitled to tell their own side of the story to the judge before their content is taken down. And if a defendant loses, he is typically given the opportunity to exhaust his appeals before his speech is censored.

The sponsors of SOPA and PIPA appear to have ignored these concerns. Both bills allow the attorney general (and, in some cases, private parties—more on that later) to request a takedown of an overseas site based on the legal fiction that the website, rather than its owner, is the defendant. Because a website owner isn't technically a party to the case, the judge can issue an injunction before he has even heard the defendant's side of the case. And the attorney general can have the target website cut off from access to search engines, advertising networks, and credit card payments.

Website owners can intervene to overturn an injunction, but the bill envisions this adversarial process happening after the injunction has been issued and the site has already been removed from search engines and had its funding cut off.

To see how this can burden free speech, we need only look at the case of rojadirecta, which was seized by the government last year. The Spanish sports site has been declared legal under Spanish law, but it has taken the site months to get a hearing in an American court. Whether or not the seizure of rojadirecta is declared legal or not, the site should have had its day in court before it lost its domain. SOPA and PIPA would make this problem worse by extending similar procedures to ad networks, payment networks, and search engines.

Private right of action

The seizure of rojadirecta.com was part of Operation In Our Sites, an aggressive anti-piracy operation authorized by the 2008 Pro IP Act. In Our Sites is a law enforcement effort; government officials take suggestions from copyright holders on which sites to target as part of Operation in our Sites, but they evaluate them independently and don't go after every site suggested by copyright holders. For example, out of one batch of 130 industry suggestions, the feds decided that only 82 of them warranted enforcement action.

No similar check would exist for the ad network and payment processing provisions of PIPA and SOPA. Any "qualifying plaintiff," defined as anyone with standing to bring a copyright lawsuit against the target site, would have access to the same one-sided process to seek an injunction. And it could take that injunction to ad networks and payment processors to cut off the flow of funds to the target site. And all of this could happen before the target site had the chance to give its own side, to say nothing of appealing the judge's decision.

This is important because major content producers don't have a great record of restraint when it comes to exercising takedown powers. Last month we covered UMG's claim that it has the power to take down YouTube videos it doesn't own. And the month before that, Warner Brothers admitted that it had sent automated takedowns under the DMCA against content it didn't own and that no Warner employee even looked at.

Neither SOPA nor PIPA have any penalties for copyright holders who abuse their new powers. The Digital Millennium Copyright Act provides for penalties (albeit fairly toothless ones) against copyright holders who abuse the powers provided by its notice-and-takedown rules. In contrast, websites targeted by bogus SOPA or PIPA injunctions would have no recourse.

Felony streaming

Last year, Sen. Amy Klobuchar (D-MN) introduced legislation that would ratchet up the penalties for unauthorized streaming of copyrighted works. Under her bill, you could face up to five years in prison if you show 10 or more "public performances" over the Internet in a 180-day period, and the total retail value of the "performances" exceeds $2500.

When Rep. Smith introduced SOPA, he incorporated a lightly modified version of Klobuchar's bill. His version sets the bar even lower than Klobuchar's. Streaming even one copyrighted work subjects you to liability if it has a retail value of at least $1000. And any streaming of unauthorized copyrighted material "for purposes of commercial advantage or private financial gain" is subject to punishment.

Noted copyright scholar Justin Beiber has called for Klobuchar to be "locked up" for proposing the felony streaming bill. It's not clear exactly what this section of the bill would prohibit (some have suggested the videos that made Bieber famous would have made him a felon, since he sang copyrighted songs without getting licenses for them), but 5-year jail terms seem excessive in any case.

Kill bill(s)

The sponsors of these bills and their allies in the content industry have employed a savvy negotiating strategy. They began with a bill that contained every item in their anti-piracy wish list. This has allowed them to play the role of reasonable compromiser each time they drop a noxious provision from a bill. Yet what remains is still a serious threat to Internet freedom.

In recent months, each new revision of the bills has been slightly less awful than the ones that came before, and they're likely to continue that process in the coming weeks, hoping they can water the bill down enough to mollify the bill's critics.

But we think SOPA and PIPA are beyond saving. It was negotiated in a smoke-filled room with minimal input from the Internet community, and its core provisions are flatly inconsistent with the values of the Internet. Congress should stop considering SOPA and PIPA for this session. They may wish to consider the more reasonable (but still far from perfect) OPEN Act as an alternative. Or if that doesn't satisfy Hollywood, they should spend the next few months brokering a serious conversation between Hollywood and the Internet community. Then maybe all the parties can come back in 2013 with a new proposal that doesn't endanger online freedom.

It's "Bieber", and he prefers to be known as a copyright professor emeritus, thank you very much.

Side note: I love how the dozen or so articles about copyright means the comment threads taper off after two or three pages, before the ad hominems really get going in full force. Makes for a much simpler afternoon.

The Supreme Court has ruled that the First Amendment prohibits prior restraint—limiting access to speech before a court has provided due process to the defendant. In particular, as a letter signed by dozens of law professors pointed out, speakers are entitled to tell their own side of the story to the judge before their content is taken down.

Do DMCA takedowns not violate this? My understanding of those is that the appeal process can begin only after the content has been removed.

Hear hear! We mustn't let up until SOPA, PIPA, and any bill resembling them (OPEN included) are dead and buried. Now, I'd love to see the sponsors of the bills impeached and DMCA repealed, but I there are limits to how much one can hope for.

The Supreme Court has ruled that the First Amendment prohibits prior restraint—limiting access to speech before a court has provided due process to the defendant. In particular, as a letter signed by dozens of law professors pointed out, speakers are entitled to tell their own side of the story to the judge before their content is taken down.

Do DMCA takedowns not violate this? My understanding of those is that the appeal process can begin only after the content has been removed.

Yes, they do. With the DMCA, the accuser issues a takedown. Now, even if I immediately issue a counter-notice, the content still has to be down for 10 or 14 days. Even if I issue the counter notice the same day as the takedown.

Neither SOPA nor PIPA have any penalties for copyright holders who abuse their new powers.

How does this square with the provision I posted in another thread?

Quote:

(6) MISREPRESENTATIONS- Any provider of a notification or counter notification who knowingly materially misrepresents under this section-- (A) that a site is an Internet site dedicated to the theft of U.S. property, or (B) that such site does not meet the criteria of an Internet site dedicated to the theft of U.S. property, shall be liable for damages, including costs and attorneys' fees, incurred by the person injured by such misrepresentation as a result of the misrepresentation.

This legislation is like a cancer; it has to be destroyed before it can spread to the rest of the world - and it will definitely do so if it passes. (As if it weren't bad enough as it is.)

Quote:

The sponsors of these bills and their allies in the content industry have employed a savvy negotiating strategy. They began with a bill that contained every item in their anti-piracy wish list. This has allowed them to play the role of reasonable compromiser each time they drop a noxious provision from a bill. Yet what remains is still a serious threat to Internet freedom.

Neither SOPA nor PIPA have any penalties for copyright holders who abuse their new powers.

How does this square with the provision I posted in another thread?

Quote:

(6) MISREPRESENTATIONS- Any provider of a notification or counter notification who knowingly materially misrepresents under this section-- (A) that a site is an Internet site dedicated to the theft of U.S. property, or (B) that such site does not meet the criteria of an Internet site dedicated to the theft of U.S. property, shall be liable for damages, including costs and attorneys' fees, incurred by the person injured by such misrepresentation as a result of the misrepresentation.

Can you clarify?

Why don't you go ahead and read that section again. Look at the key term: "who knowingly materially misrepresents". The same phrase is in the DMCA as well.

There's a reason why more people aren't sued for abuses of the DMCA: It is prohibitively expensive to do so, and to prove that they KNOWINGLY did it in bad faith is almost impossible. All I have to say is, "Oh, I'm sorry, I didn't know," and I'm off the hook.

Neither SOPA nor PIPA have any penalties for copyright holders who abuse their new powers.

How does this square with the provision I posted in another thread?

Quote:

(6) MISREPRESENTATIONS- Any provider of a notification or counter notification who knowingly materially misrepresents under this section-- (A) that a site is an Internet site dedicated to the theft of U.S. property, or (B) that such site does not meet the criteria of an Internet site dedicated to the theft of U.S. property, shall be liable for damages, including costs and attorneys' fees, incurred by the person injured by such misrepresentation as a result of the misrepresentation.

Can you clarify?

Why don't you go ahead and read that section again. Look at the key term: "who knowingly materially misrepresents". The same phrase is in the DMCA as well.

There's a reason why more people aren't sued for abuses of the DMCA: It is prohibitively expensive to do so, and to prove that they KNOWINGLY did it in bad faith is almost impossible. All I have to say is, "Oh, I'm sorry, I didn't know," and I'm off the hook.

Also, shouldn't there be punitive measures in there? Like, pay the accused MORE than it cost to defend a false accusation?

There's a reason why more people aren't sued for abuses of the DMCA: It is prohibitively expensive to do so, and to prove that they KNOWINGLY did it in bad faith is almost impossible. All I have to say is, "Oh, I'm sorry, I didn't know," and I'm off the hook.

It doesn't say "in bad faith," you're simply adding that. There are only two requirements:1. They materially misrepresented something.2. They knew that they did so.

They can't say "I didn't know" if they said previously that they did know, and NOT have knowingly misrepresented something, namely the fact that they knew!

Regardless, you're talking about the efficacy of enforcing the penalties. I'm asking about the statement in TFA that no such penalty exists in the bill. The article specifically contrasts it with the DMCA in this regard.

There's a reason why more people aren't sued for abuses of the DMCA: It is prohibitively expensive to do so, and to prove that they KNOWINGLY did it in bad faith is almost impossible. All I have to say is, "Oh, I'm sorry, I didn't know," and I'm off the hook.

It doesn't say "in bad faith," you're simply adding that.

That's the same thing as what is said. You have to prove that they knew they were doing wrong, and they did it anyway. Which is almost impossible to do so.

Neither SOPA nor PIPA have any penalties for copyright holders who abuse their new powers.

How does this square with the provision I posted in another thread?

Quote:

(6) MISREPRESENTATIONS- Any provider of a notification or counter notification who knowingly materially misrepresents under this section-- (A) that a site is an Internet site dedicated to the theft of U.S. property, or (B) that such site does not meet the criteria of an Internet site dedicated to the theft of U.S. property, shall be liable for damages, including costs and attorneys' fees, incurred by the person injured by such misrepresentation as a result of the misrepresentation.

Can you clarify?

Where does that come from specifically? it sounds like that might be an earlier version of SOPA. See the links in my story for the latest versions.

There's a reason why more people aren't sued for abuses of the DMCA: It is prohibitively expensive to do so, and to prove that they KNOWINGLY did it in bad faith is almost impossible. All I have to say is, "Oh, I'm sorry, I didn't know," and I'm off the hook.

It doesn't say "in bad faith," you're simply adding that. There are only two requirements:1. They materially misrepresented something.2. They knew that they did so.

They can't say "I didn't know" if they said previously that they did know, and NOT have knowingly misrepresented something, namely the fact that they knew!

Regardless, you're talking about the efficacy of enforcing the penalties. I'm asking about the statement in TFA that no such penalty exists in the bill. The article specifically contrasts it with the DMCA in this regard.

I don't support this bill, but I also don't support being lied to.

i agree with your questioning, but i wouldnt go so far as being lied to. if the internet has taught me anything, its that content is pushed out as fast as possible and you need to do your own follow up.

There's an important misunderstanding here that needs to be cleared up. Leahy has not agreed to drop the DNS provision, he has agreed to "delay the implementation" of the provision.

That aside, I want thank you for bringing the issues of Due Process and the Private Right of Action back into the light. I've been worried that these two issues would get lost amidst all the other discussion of SOPA and PIPA. My personal opinion is that these are actually the two most dangerous parts of the bills and in many ways are the causes of the free speech issues. If the due process violations and the private right of action weren't in the bill then these private entities wouldn't be able to violate free speech rights.

Your conclusion that these bills are beyond saving is spot on, they are simply awful legislation from start to finish and there is nothing that can be done at this point to render them palatable or functional.

There's a reason why more people aren't sued for abuses of the DMCA: It is prohibitively expensive to do so, and to prove that they KNOWINGLY did it in bad faith is almost impossible. All I have to say is, "Oh, I'm sorry, I didn't know," and I'm off the hook.

It doesn't say "in bad faith," you're simply adding that.

That's the same thing as what is said. You have to prove that they knew they were doing wrong, and they did it anyway. Which is almost impossible to do so.

Quote:

2. They knew that they did so.

That's what "in bad faith" means, dumbass.

Annnnd the name calling. What are, 12? I'm saying that "knowingly" means "knows they made the statement," not "knows it is a misrepresentation." To illustrate, suppose there is a law that makes it a crime to "knowingly urinate in public." You're not going to get out of ticket for public urination by arguing you thought the street corner was private property. You would have to prove that you didn't realize you were urinating.

Neither SOPA nor PIPA have any penalties for copyright holders who abuse their new powers.

How does this square with the provision I posted in another thread?

Quote:

(6) MISREPRESENTATIONS- Any provider of a notification or counter notification who knowingly materially misrepresents under this section-- (A) that a site is an Internet site dedicated to the theft of U.S. property, or (B) that such site does not meet the criteria of an Internet site dedicated to the theft of U.S. property, shall be liable for damages, including costs and attorneys' fees, incurred by the person injured by such misrepresentation as a result of the misrepresentation.

Can you clarify?

Where does that come from specifically? it sounds like that might be an earlier version of SOPA. See the links in my story for the latest versions.

EDIT: And I can't find any information that your linked Amendment was adopted, which would mean that the Thomas text should actually be the version under consideration. I could be wrong about that, though.

There's a reason why more people aren't sued for abuses of the DMCA: It is prohibitively expensive to do so, and to prove that they KNOWINGLY did it in bad faith is almost impossible. All I have to say is, "Oh, I'm sorry, I didn't know," and I'm off the hook.

It doesn't say "in bad faith," you're simply adding that.

That's the same thing as what is said. You have to prove that they knew they were doing wrong, and they did it anyway. Which is almost impossible to do so.

Quote:

2. They knew that they did so.

That's what "in bad faith" means, dumbass.

Annnnd the name calling. What are, 12? I'm saying that "knowingly" means "knows they made the statement," not "knows it is a misrepresentation." To illustrate, suppose there is a law that makes it a crime to "knowingly urinate in public." You're not going to get out of ticket for public urination by arguing you thought the street corner was private property. You would have to prove that you didn't realize you were urinating.

Wrong. That's not how it's been interpreted. In this context, they have to know that it is a misrepresentation. So yes, you do have to prove that the other party actually acted in bad faith, and did know that they in fact issued a takedown to something they knew was not theirs.

I'd love this bill to have a clause sun-setting it immediately if it can be shown that it had been used for censorship, "knowingly" or not. If one is really just after pirates and not the kind of power this bill really entails then this sort of protection for the people should be no problem.

Dear Media Companies:I've figured out how to stop online piracy. All you have to do is keep doing what you're doing. Don't adjust your business strategies in line with current and future technology. Continue to treat all your customers like criminals. Keep pumping out crap with artificially inflated prices that you could get away with before the Internet. And definitely buy off our government to enforce your will over the American public. If you continue these practices, you will all eventually go out of business. Then there will be nothing to pirate anymore. Congratulations. Great business model.

I'd also like to point out that even if we're talking about the proposed amendment to the bill and not the bill as currently on the table, that misstatements made to the court in the process of obtaining an injunction are already punishable under F.R.C.P. 11(b):

Quote:

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

And is punishable by monetary, nonmonetary, compensatory, and punitive sanctions.

I'm saying that "knowingly" means "knows they made the statement," not "knows it is a misrepresentation."

What s73v3r said. But I don't see how you can get to the above interpretation even from plain English.

The form is "knowingly <verb phrase>". So just like "knowingly urinated" means you would have to have known you urinated, and "knowingly urinated on public property" would mean you would have to have known it was also public property, "knowingly misrepresents" would logically mean that you would have to have known you misrepresented something, not merely know you said something.

If yours were the interpretation they wanted, they would have written something like "knowingly states" rather than "knowingly misrepresents".

There's a reason why more people aren't sued for abuses of the DMCA: It is prohibitively expensive to do so, and to prove that they KNOWINGLY did it in bad faith is almost impossible. All I have to say is, "Oh, I'm sorry, I didn't know," and I'm off the hook.

It doesn't say "in bad faith," you're simply adding that. There are only two requirements:1. They materially misrepresented something.2. They knew that they did so.

There's a reason why more people aren't sued for abuses of the DMCA: It is prohibitively expensive to do so, and to prove that they KNOWINGLY did it in bad faith is almost impossible. All I have to say is, "Oh, I'm sorry, I didn't know," and I'm off the hook.

It doesn't say "in bad faith," you're simply adding that. There are only two requirements:1. They materially misrepresented something.2. They knew that they did so.

They can't say "I didn't know"

Next time, I recommend that you read what you type before posting it.

Mea culpa, I see that is confusing. My argument was supposed to be that the alternative to "I didn't know" was "I submitted it by accident," which is unlikely to be very plausible.

Would it apply to any random person who streams a TV show or movie from an illegal website, assuming the content owner could claim $1000 damages? i.e. Bob watches the latest Mission Impossible movie at illegalStreamingMoves.com, gets his IP logged by a lawyer, and is then charged with a felony including a 10 year prison sentence? (This is assuming that the movie studio claims $1000 in damages from a single movie viewing, which is exactly what I'd expect of them.)

I'd also like to point out that even if we're talking about the proposed amendment to the bill and not the bill as currently on the table, that misstatements made to the court in the process of obtaining an injunction are already punishable under F.R.C.P. 11(b):

Quote:

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

And is punishable by monetary, nonmonetary, compensatory, and punitive sanctions.

The Supreme Court has ruled that the First Amendment prohibits prior restraint—limiting access to speech before a court has provided due process to the defendant. In particular, as a letter signed by dozens of law professors pointed out, speakers are entitled to tell their own side of the story to the judge before their content is taken down. And if a defendant loses, he is typically given the opportunity to exhaust his appeals before his speech is censored.

Exactly. The defendent should not have any out of pocket expenses if found not guilty. And the offender in the case of rejected application for takedown should be fined.

Would it apply to any random person who streams a TV show or movie from an illegal website, assuming the content owner could claim $1000 damages? i.e. Bob watches the latest Mission Impossible movie at illegalStreamingMoves.com, gets his IP logged by a lawyer, and is then charged with a felony including a 10 year prison sentence? (This is assuming that the movie studio claims $1000 in damages from a single movie viewing, which is exactly what I'd expect of them.)

The lack of clarity about what it covers is one of the problems. I'm not one that advocates for no criminal penalties for willful infringement that can be demonstrated to have caused actual damages, so I don't see an issue with there being a felony associated with it. But I do think simply saying that streaming content in an unauthorized way is a felony, or even a civil infraction, is ridiculous. Technology advances. Content owners will resist consumers using that technology to view content in ways they can't monetize a second/third/etc time. But that doesn't mean it shouldn't be allowed. All this crazy nonsense about whether something is a "copy" simply because I move the file from my hard drive to my MP3 player / phone / cloud device is evidence that our definition of "copyright" needs to loosen up a LOT. Content providers need protections against people distributing content to additional people, but they shouldn't be given special legal powers that prevent user flexibility and force the user to repurchase content simply to be in compliance with the law.

EDIT: Just realized I didn't address your scenario. But yes, I think you're right, that if it could be demonstrated that the value of the stream Bob played had a $1000 retail value, the criminal penalty would apply to him. I'd imagine he'd either have to watch the stream a ton of times or show the stream publicly to rack that kind of value up, but who knows what shady math the content owner would come up with.

Neither SOPA nor PIPA have any penalties for copyright holders who abuse their new powers.

How does this square with the provision I posted in another thread?

Quote:

(6) MISREPRESENTATIONS- Any provider of a notification or counter notification who knowingly materially misrepresents under this section-- (A) that a site is an Internet site dedicated to the theft of U.S. property, or (B) that such site does not meet the criteria of an Internet site dedicated to the theft of U.S. property, shall be liable for damages, including costs and attorneys' fees, incurred by the person injured by such misrepresentation as a result of the misrepresentation.

Can you clarify?

Where does that come from specifically? it sounds like that might be an earlier version of SOPA. See the links in my story for the latest versions.

EDIT: And I can't find any information that your linked Amendment was adopted, which would mean that the Thomas text should actually be the version under consideration. I could be wrong about that, though.

It wasn't formally adopted because the markup ended before the committee could agree to anything. But the manager's amendment is generally considered the "live" version of SOPA at the moment. The penalties you cite sound like they're part of a separate "voluntary" takedown process that was in the October bill but that Smith stripped out in the version he introduced in December.

I would like to mention that with the idea of 'online streaming being a felony if using copyrighted..". This here confuses a fact of 'one-to-one,with one-to-many,and many-to-many. I like this idea borrowed from something the fcc uses in recognizing types of broadcast for traditional OTA broadcasts (heard it in a conversation /publication amonst it) . But just the idea there that there is some kind of difference in rationalizing access and transmition of non-commercial,in the singular one-to-one for electronic transmition/viewing would be a felony is a small quaint of criminalization I would not like to see capitalized to. And having said so. The perhaps I am enjoying a copyrighted show between separate hosts w/o oversight of an copyrighted 'authorization' ? The simplicity of ones privacy in communications to this is what seems to vanish to the criminalization of doing so. And still streaming a one-to-one 'broadcast' between distant viewers is an awesome retreat of entertainment,relaxation,and 'communication. Then is saying this privacy,is there the very relevance of 'fair-use' to doing so ? I mean one or the other has the collection,and wether music or video this is nothing to do with copy. So that in and of itself perhaps is this 'criminalization' simply vying to control 'broadcast timing for the content,and the corresponding 'exhibition' of the content ? In and of itself one-to-one streaming just to say so , is this an 'intelectual property" ? Something that should be kept to an open concept of standards than a closed and vacated by default in something which is copyrighted ? I look forward to streaming many a matches of copyrighted work. But this is only a method to utilize for the most part what is a 'fair-use' of a one-to-one 'broadcast. Howebeit the communication aspect is present in any proposition between the different stated fcc methods of broadcasts. I'm aware that 'fair-use'goes hand in hand of utilization of a work. Rather than the 'exhibition'of the work. And that the privacy in fair use is usually what captures the audience,or lack there of for the exhibition of the work.

Dont think that copyright ever went that far in discussion of 'fair-use' vrs 'copyright'. You can see though that criminalization kind of snaps the lid on the one-to-one ideal.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.